Tuesday, December 20, 2005

The President's scheme for warrantless wiretapping outside the structure of FISA cannot be defended by pointing to the Congressional authorization to use force against Afghanistan. When he argues that the word "force" includes domestic surveillance he implies that laws composed of words no longer have meaning to him and his legal advisors.

The revelation of this scheme, by the way, cannot endanger our national security. That the United States is using every conceivable technology and technique to detect and monitor potential terrorists cannot be news to any such terrorist. Revelation that the NSA is monitoring telephone calls without warrants, when those calls could have been monitored by the FBI by following FISA, cannot make any difference to the activities of potential terrorists, and thus the revelation cannot endanger national security.

Our system of government is designed to maintain a rule of law. When the Executive operates outside the rule of law, it is the duty of the Congress to take steps to maintain checks and balances.

Assuming that we are not at a stage in which impeachment is warranted, then what are the tools that Congress has, and should use, to curtail abuses by the president?

Members of Congress must, at a minimum, express their rejection of lawless behavior by the Executive, even if the opportunity for sanctions through "the power of the purse" or oversight hearings and investigations are limited.

Obviously to introduce a resolution of impeachment is an extremely serious allegation. Unfortunately its importance was undermined by the frivolous misuse of this important congressional power by the Republican majority against President Clinton.

I fear that it is time for Members of Congress to begin to study the proper use of the Constitutional power of impeachment, and to sharpen their understanding of "high Crimes and Misdemeanors." (Article II, section 4).

If the President is insisting on highly expansive or creative interpretation of the meaning of words in a Congressional authorization of "force" to include "electronic surveillance," then it might be time for Members of the House Judiciary Committee to begin to publicly clarify their understanding of the meaning of an important constitutional term, "high Crimes and Misdemeanors."

My recollection, having studied the literature of impeachment on several occasions, is that "high Crimes and misdemeanors" are not criminal offenses in the traditional sense, but are uniquely political offenses against the state, such as abuse of power. An example of such an abuse of power would be to authorize unlawful and unconstitutional activities that violate civil liberties. Another example would be misrepresenting national security intelligence for the purpose of tricking the Congress and the Nation into supporting a war.

"Discussion of the drug issue is sometimes filled with emotion, inaccuracies and wishful thinking. In many cases, what is represented as "fact" is really fiction, and it's hard to notice the difference. Some people downplay the dangers of drugs, their effects on society and their effects on our bodies and brains. Others claim that restrictive government drug policies have harmed our country. Still others tell us that drugs should be plentiful and legal."

DEA suggests that arguments against prohibition come from the drug dealers: "The drug market is controlled by greedy individuals and organizations who believe they can make a living off your choices. Their advertising is word-of-mouth, glamorization of drugs through our culture, and dissemination of bad information."

DEA says, of course, the marijuana is not medicine. They point to a tragic case of 14-year old Irma Perez, who was poisoned with bogus "Ecstasy," and stopped breathing. According to DEA Administrator Karen Tandy, Perez' friends believing marijuana was medicine, stuffed marijuana leaves into her mouth. Irma slipped into a coma and died, thus proving the marijuana is not medicine.

Thursday, October 27, 2005

Why did Harriett Miers withdraw herself from further consideration for the Supreme Court on October 27?

Not simply because conservatives were attacking her. Democrats are accusing the President of caving in to the ultra-right wing in pulling her nomination. In blaming the ultra-right wing, Democrats are attacking their favorite boogeymen. Strategically, they are laying the groundwork to attack the next nominee as "the tool of right wing extremists," fearing correctly that the President will nominate a genuine conservative legal heavy weight. This will set up the battle in the Senate that has been feared since January with the talk about the "nuclear option" (remember that phrase?).

The background is that on Capitol Hill, as Miers met with Senators making "courtesy calls" (which are not simply about tea and pleasantries) she was not making a positive impression trying to present herself as knowledgeable about the intricacies of constitutional law. The questionnaire she submitted to the Judiciary Committee was so substandard, the Committee asked her to supplement it. Majority Leader Frist assessed the situation and called the White House on Wednesday to say that Miers probably would not be confirmed.

Miers remained an unknown quantity to the end. She responded to a questionnaire when running for Dallas City Council that she would work to ban abortion. Four years later she gave a speech about the importance to women of "self-determination." She was reputed to be a hard worker and competent attorney. But her writing, such as her monthly columns as President of the Texas Bar, was atrocious, as David Brooks of The New York Times pointed out.

The President ends up looking bad. He named a close crony to the high court. She turns out to be substandard. His base deserts him. He appears to fail to understand the role of the Supreme Court. Whatever credit he gets for nominating the highly-qualified John Roberts evaporates.

The Miers nomination reveals a deep hypocrisy about the Supreme Court at the White House. Miers was peddled to James Dobson (Focus on the Family) and other anti-abortion activists as a sure "vote" to reverse Roe v. Wade.

The principled conservative objection to social policy decisions of the Court such as Roe v. Wade is that they are acts of legislation, not reasoned interpretations of the Constitution. (This is aside from the political fact that conservatives disagree with the policy.)

For the president to simply see Miers as a sure "vote" to reverse Roe is to promote her as a legislator, an argument fundamentally at odds with the conservative criticism of Supreme Court jurisprudence since the days of Earl Warren. Miers' record revealed that she had no background to provide reasoned interpretations of the Constitution to support her decision making. Genuine conservatives, aside from their fears that she might not be as dependable as they might like, saw a prospective justice simply unable to hold her own in the intellectual combat of Supreme Court deliberation.

Friday, October 14, 2005

Six weeks after Hurricane Katrina's flooding and evacuations demolished thejustice system in New Orleans, some constitutional rights are being appliedagain. Some of the prisoners are getting hearings, reports The New YorkTimes, on whether they are eligible for bail, a right guaranteed by theEighth Amendment. But another right, the Sixth Amendment right to a speedy trial, is being suspended.

While it is understandable given the state of chaos, it is worth noting thefailure of the administrators of the system of justice to prepare for thecontinuation of the justice system after a hurricane. It is obvious nowthat emergency planners need to plan for the continuation of the justicesystem, just as they plan for resumption of power supply, potable water,food, transportation, housing, hospitals and schools.

When the nature of an evacuation changes from flight for temporary refugefrom a storm to permanent migration, the nature of a jury trial changes.What does the jury pool look like in the new New Orleans? How does one geta jury of one's peers, when one's peers are scattered across the nation?

When a city has no money, and the basis for tax revenues are lost -- noreal estate taxes paid on destroyed properties; no sales taxes fromtourists who aren't present -- the ability to carry out a criminal justicesystem may be lost as well.

Even though the drama of the Katrina tragedy is not heard in the hourlynews round-ups now -- new tragedies, new scandals are the news -- only afew minutes consideration reveals that tribulations of a million peopleonce living along the Gulf coast are achingly tragic, and will continue foryears.

Tuesday, September 27, 2005

Brian Thevenot and Gordon Russell, reporters from the New Orleans Times-Picayune, have investigated the widely broadcast reports of rape, murder and shootings that permeated the national press in reporting on the isolated and abandoned flood victims languishing at the New Orleans Superdome and Convention Center in the days after Hurricane Katrina flooded that city. The rumors could not be verified. An actual body count revealed that there were six deaths in the Superdome, none by murder. Four deaths were due to natural causes, one was a drug overdose, and the last was case of a man who jumped to his death in an apparent suicide, that had been well reported.

At the Convention Center, only four bodies were recovered by the authorities, despite press reports of corpses piled inside the building. One of the dead appeared to have been killed, said officials.

Evacuees had told reporters of hundreds of bodies -- evidently a myth created by the evacuees, and repeated by the media and even some New Orleans' officials, including the mayor and police superintendent.

Prosecutors report there were four murders in New Orleans in the aftermath of Katrina. New Orleans averages about four murders per week, but of course on a per capita basis, with much of the city evacuated, this number is a high rate.

Was the fact that the evacuees were primarily poor and Black a factor in contributing to acceptance of the unsubstantiated exaggerations of heinous violence? Did the acceptance of these claims fill the stereotypes held by the middle-class reporters (and other middle-class commentators) that any gathering of desperate and poor and Black people, with an absence of established authority, was likely to be the occasion of heinous violence?

Or was it simply a case that in the reporting of a dramatic catastrophe, any fact that contributes to the sense of horror is part of the story? After all, at one point the predicted death toll was estimated to be greater than 10,000.

Monday, September 12, 2005

The New Orleans criminal justice system has been scattered. 8000 prisoners were evacuated to 35 locations around Louisiana. There was no paperwork to accompany them, according to Henry Weinstein, veteran criminal justice writer for the Los Angeles Times.

The more than temporary shut down of local, state and federal courts -- with the evacuation of attorneys, judges, other court personnel, and witnesses -- is unprecedented.

The collapse of the New Orleans legal system should raise the question of continuity of government for disasters less cataclysmic than than the killing of much of Congress. Congress has been facing this question, without taking action, since shortly after 9/11 when it realized that the Capitol was a target of the hijacked jet that crashed in Pennsylvania.

According to a Jan. 2005 Congressional Research Service paper:Presidential Decision Directive 67 (PDD 67), was signed by President William Clinton on October 21, 1998, and relates to ensuring constitutional government, continuity of operations planning, and continuity of government operations. Federal agencies are required to develop Continuity of Operations Plans for Essential Operations that identify those requirements necessary to support the primary functions of the agencies, such as emergency communications, a chain of command, and delegation of authority. The full text of the directive remains security classified." .....

The Judicial Branch.The Constitution establishes the Supreme Court of the United States and prescribes the statutory creation of inferior federal courts, but is silent regarding the continued functioning of the federal judiciary during or after an incapacitating catastrophe. Plans exist for the protection of the justices of the Supreme Court, but the details of these plans are not public information. In locales of the United States where federal courts could not function due to an emergency, the President might temporarily declare martial law and vest minimal trial court authority in military tribunals convened by commanding officers in the field dispatched to enforce federal law. [See 10 U.S.C. 332 relating to "...unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States..." The text of the martial law provision clearly does not apply to natural disasters.]

Returning to the tragedy in Louisiana, one defense attorney in Louisiana, interviewing prisoners once held in Orleans parish jail, told the LA Times the prisoners said as water flooded into the jail, they were moved to cells on higher and higher floors, and finally to the top-floor gymnasium. When water was chest high, they broke windows and swam for safety. The attorney said that prisoners fear that some drowned.

Court records, charging documents, and physical evidence may have been destroyed.

Court personnel, prosecutors, defense attorneys, and witnesses, have been scattered by the evacuation as evacuees have been flown and driven all over the United States.

Yet blustering statements that the courts will carry on and begin its work on September 16 are being made by the chief judge of the criminal division in Orleans Parish. Judge Calvin Johnson told the LA Times, "We are going to operate the criminal district court and do it in conformity with the Constitution....I assure you of that. We will ensure public safety is protected and the rights of the accused are protected."

Indigent defense in Louisiana's justice system is funded by the fines from traffic tickets -- a large portion of which were generated in New Orleans. That source of revenue is now largely closed.

What does a person released on bail do not knowing when a trial might be resumed? What do the officers supervising those released on probation or parole do to supervise or contact their clients?

Wednesday, August 31, 2005

A former police chief in Scotland has testified that the CIA fabricated evidence in the bombing of Pan American Flight 103 in the skies over Lockerbie, Scotland in December 1988. This report from The Scotsman, published in Edinburgh, says, "The retired officer - of assistant chief constable rank or higher - has testified that the CIA planted the tiny fragment of circuit board crucial in convicting a Libyan for the 1989 mass murder of 270 people."

If this allegation is true, that fact that the government would take such steps in a critical prosecution has to shake the public's confidence in every prosecution of political or national security significance.

In the United States, the instances in which prosecutors have withheld or manipulated evidence favorable to the accused in high profile cases fill page after page of the law reports. Often these cases are not uncovered until long after the accused have gone to prison.

In Dallas in 2001, more than 30 innocent defendants were arrested and indicted, and some pleaded guilty because an informant was routinely submitting Sheetrock (R) to a narcotics detective claiming it was crack cocaine. An investigation released on May 9, 2005, http://www.dallasnews.com/sharedcontent/dws/img/05-05/0510report2.pdf by Special Prosecutor Jack Zimmerman found a pattern of malfeasance by police officers, their supervisors, prosecutors, defense attorneys and judges, but nothing that constituted a crime.

Throughout the United States crime labs have been facing challenges of reports of sloppy procedures.

Even the vaunted FBI crime lab blundered repeatedly, and in the highest profile cases: the Unabomber, the Oklahoma City bombing, and the Ruby Ridge shooting, according to Tainting Evidence by John F. Kelly and Phillip K. Wearne (The Free Press, 1998). As The Scotsman notes the FBI was involved in the Lockerbie investigation, but assigned a bomb examiner who was exposed as a fraud:

"The vital evidence that linked the bombing of Pan Am 103 to Megrahi was a tiny fragment of circuit board which investigators found in a wooded area many miles from Lockerbie months after the atrocity.

"The fragment was later identified by the FBI's Thomas Thurman as being part of a sophisticated timer device used to detonate explosives, and manufactured by the Swiss firm Mebo, which supplied it only to Libya and the East German Stasi.

"At one time, Megrahi, a Libyan intelligence agent, was such a regular visitor to Mebo that he had his own office in the firm's headquarters.

"The fragment of circuit board therefore enabled Libya - and Megrahi - to be placed at the heart of the investigation. However, Thurman was later unmasked as a fraud who had given false evidence in American murder trials, and it emerged that he had little in the way of scientific qualifications.

"Then, in 2003, a retired CIA officer gave a statement to Megrahi's lawyers in which he alleged evidence had been planted.

"The decision of a former Scottish police chief to back this claim could add enormous weight to what has previously been dismissed as a wild conspiracy theory. It has long been rumoured the fragment was planted to implicate Libya for political reasons."

From the lowest levels of the Dallas police department to literally the highest levels -- the bombing of long-range jet aircraft at cruising altitude for international terror reasons -- evidence is fabricated.

While serious predators continue to victimize innocent Americans every day, our ability to believe that the perpetrators are being caught and fairly tried in order to bring them to justice is steadily undermined. Lawlessness by the law enforcement agencies undermines society's ability to teach law obedience, to deter potential offenders, and to justly punish offenders.

Thursday, August 04, 2005

On August 8, 2005, Newsweek ran a cover story, "America's Most Dangerous Drug", on methamphetamine use that was more of a hysterical expose than investigative journalism. In response to Newsweek's publication, Jack Shafer of Slate has written two excellent articles I highly recommend on the misrepresentation of "meth madness".

"Moral panics rip through cultures, observed sociologist Stanley Cohen in 1972, whenever "experts" and the "right-thinking" folks in the press, government, and the clergy exaggerate the danger a group or thing poses to society. Immigrants have been the subject of moral panics, as have alcohol, jazz, comic books, sex, street gangs, rock, video games, religious cults, white slavery, dance, and homosexuals. But in the United States, moral panics are most reliably directed at illicit drug users..." Read the full article: http://www.slate.com/id/2124160/

Wednesday, August 03, 2005

In February, at a hearing on harm reduction, a freshman Member of Congress started attacking a member of the board of the Drug Policy Alliance for its support of a book for children about marijuana, called "It's Just a Plant."

I read the book carefully, since I have a 7-year old daughter.

In June, the author asked me to comment

Here's my review:If genuinely intended as a book to educate children about marijuana, I don't think "it's Just a Plant" succeeds. The paintings are imaginative, and lovingly drawn. The messages are probably appropriate for children who are ten to fourteen or so, depending on their maturity. But the messages are packaged stylistically for children who are pre-literate. The large type, the extensive use of white space, the short portions of text on a page, coupled with imaginative, colorful paintings all are typical of books for children ages 4 to 8 -- pre-school to second grade. The child at the center of the book, Jackie, looks to be about five or six years old. It begins, "Jackie loved to go to sleep at night." This is an issue for the parents of very young kids -- getting them to go to bed. But the sophisticated and complex messages about marijuana's effects, its illegality, its medical use, etc., in my view, are too abstract for and irrelevant to 4 to 8 year olds.

On the other hand, the pre-teenagers for whom the messages may be appropriate are likely to find the packaging a complete turn-off. Visually and stylistically, it is unmistakably a book for the youngest children. No kid age 10 to 14 is going to find a book in the visual style used for pre-schoolers and earliest readers to be credible. It would be like asking them to watch Barney the Dinosaur or Sesame Street to get a sex education message. It is almost insulting.

If the messages of the book are too sophisticated for the pre-literate kid, what about the plot or the pictures? Again, I don't think the book works. Kids at this age are pretty literal, even in the fantasy world. Even in a fantasy, there needs to be an underlying coherence. When one analyzes the many lovely, colorful paintings in "It's Just a Plant," they and the story are disconnected from the reality or literal understanding of most 4 to 8 year olds.

In the fourth painting, the child is riding her bike without a proper helmet, although her mother is. There is a problem with verisimilitude here. The child is wearing robes that are certain to get tangled in the chain or wheels of the bike, as they ride along the East River past the Brooklyn Bridge. A careful mom wouldn't allow this. Two pages and a short ride later, they are in an enormous park or field with a horse and palm tree that is certainly not New York. A couple of panels later there is a party at which a smoking hookah and a girl exhaling smoke is the center of focus. Then, after a panel back on the bicycle, riding with balloons in a fantasy land, and a visit to the pediatrician's elegant, art-filled office, Jackie and Mom are in the center of the city with a Boston blue T sign at the subway entrance, where Jackie stops and sniffs the air. "I know that smell!" she said... (and all the pot smokers reading the book giggle!).

Jackie confronts four men outside a fast food restaurant who laughingly tell her all the names they use for marijuana, when two kindly police officers interrupt their friendly lecture to cursorily shake down the men. The kindly police explain to the surprised child that marijuana is against the law, giving her a sympathetic history of its cultivation, in the course of which the officer says that her grandfather grew hemp and her grandmother sold cakes of homegrown marijuana at her cafe.

At this point, this story has become so absurd that the suggestion that this book is intended to be taken seriously, by either 4 to 8 year olds, or 10 to 13 years olds, is exposed as preposterous.

The paintings are lovely and very imaginative, and I bet that when viewed when stoned are even more so. The text sometimes mimics the style of writing used for the earliest readers. But ultimately the story is a failure. Is this believable as a real story about a real girl and her mother? Is this a fantasy story? Is this a narrative to take seriously? Does the plot hang together?

A book for 4 to 8 year old children is written and designed to be read over and over.

Is this a story that a parent will read to their pre-literate kid over and over? Only if they want to encourage their child to think a lot about marijuana at an absurdly early age.

Would a non-pot-smoking parent have any inclination to read this book to their child? I think such parents would be quite turned-off by the "trippy" merriment surrounding this whole "let's discover marijuana" adventure.

The claim that this book is intended to educate kids about the truth of marijuana is hard to take seriously.

I don't think you can defend this book by simply looking at the text and saying that nothing in the text is objectionable because none of the statements about marijuana are false as a matter of fact.

Because almost any parent with a young child who sees this book is going to find that it is inappropriate in message and style for either their young child or their pre-teen child, a legitimate question is, "who is the audience for this book?"

It seems to me the primary audience is pot smokers who would find this a pot-culture affirming artifact like "stoner" games, movies, videos, etc. Mostly, the book is for teenagers and adults who smoke pot to giggle over. It is a coffee-table book for young parent pot heads.

Educationally, there may be a tiny audience that could use this book. That is, those parents -- who are committed to smoking pot openly in their home in front of their pre-school child -- who have figured out that their child is going to be playing with other children, and is likely to tell them about what goes on in his or her house. For those pot smoking parents, a book such as this may be a tool to justify their pot smoking to their child, and to start a conversation about why the child should not tell the neighbor kids and their parents or their teachers, about the parents' open marijuana use.

Even for that purpose, I think the book is unsuccessful. Because the on-the-street pot smokers are not arrested or ticketed by the pot-sympathetic police, the book fails to communicate the seriousness of the consequences to the pot-smoking parents if their child tells people about the marijuana that Mom or Dad smoke. This is confusing: If pot use is okay and normal, why does it have to be kept a secret?

We teach our kids that their bodily functions are okay but that it is not polite to talk about poop and underpants at the table or with adults. But kids love talking about what they aren't supposed to talk about, they absolutely love it. Kids are terrible at keeping secrets. Tell 4- to 8-year olds they shouldn't tell other kids about Mom and Dad smoking pot, and you can be certain that they will tell other kids. For any parent to believe that they could use this book to teach their children not to talk about Mom and Dad's presumptively "responsible" pot use is likely to lead to a false security and disaster.

There is a need for a resource for pot smoking parents to use in their family to counteract the marijuana demonization that their kids will be exposed to. But this is not an issue that families are going to introduce at this age level.

There is more clearly a need for a resource for all parents to teach their pre-teen kids about marijuana that doesn't exaggerate harms, or trivialize legal dangers, or legitimize risky forms of experimentation. Certainly drug prohibition creates a terrible dilemma for parents who want to try bring sense to their kid's world regarding the drugs in their environment. But this is not a problem to address at ages 4 to 8 in this way.

This book can't be defended by looking at the words and ignoring the art and the design. At least half this book is the art. This book is designed to be much more than the text. It is impossible to take the book seriously as a book designed to educate children sensibly about the role of marijuana in our society because it is not in a format that is appropriate to the child's development. Such a book is urgently needed, but this book doesn't meet the need.

Any time someone we know is arrested, we are going to be shocked. I don't know Marc Emery -- I don't think I've ever met him. Many American drug policy reformers have worked with him in political and public education programs, like Pot-TV and Cannabis Culture magazine, and they report they are in a state of shock.

Nevertheless, stepping back from the personal shock, we should not be surprised that Marc Emery has been arrested, nor outraged that he was.

Assume for a moment that a man is shipping materials into the United States that can be used for making illegal drugs. He has a website and has been quite open about his shipments. We would not be surprised if the Department of Justice opened an investigation into these activities. We would not be surprised, if there was evidence that people were manufacturing drugs in the U.S. with these materials, that a grand jury indicted this person.

The ordinary procedure -- one that is followed for persons in many other nations who are accused of committing a crime that violates U.S. laws -- is to notify the "asylum" nation and request the extradition of the accused. The asylum nation then asks their local police to arrest the accused. Typically the accused is offered an opportunity to make bail, and then can contest the extradition order in court.

Typically there are legal challenges in court to the extradition request that focus exclusively on the technicalities of the demand for extradition. Then, as a matter of state, the national executive decides whether to actually extradite the accused.

Marc Emery's case seems to be following the typical pattern of international law regarding extradition.

So far, Emery's arrest appears to be a totally ordinary law enforcement activity by the Canadian government in response to unexceptional law enforcement activity in the U.S. Pot activists need to recall for a moment, that marijuana is STILL a schedule I drug, and is seen in the Justice Department and the White House as dangerous as cocaine or heroin. They will go after large scale suppliers of cannabis seeds if they can, just as they would go after large scale suppliers of meth ingredients or cocaine, if they can.

No one in the U.S. argues that when Colombia arrests an accused cocaine trafficker, pursuant to a legitimate extradition request, the Colombians are cravenly buckling to gringo power.

Many marijuana law reformers find Marc Emery's political activities laudable. But his politics does not create any immunity for him from investigation or prosecution. Carlos Lehder, the famous cocaine cartel leader of the 1980s was a deputy legislator in the Colombian parliament for a while. No one thought his political activity should protect him. The FARC in Colombia is engaged in a political struggle. No one argues that their cocaine-related activities are immunized by that fact. No one thinks that the opium and heroin-related activities of the Taliban in Afghanistan are immunized by their political activity from being charged with drug crimes, if the U.S. can present such evidence to a U.S. grand jury.

I don't think that friends of Marc Emery are helping by attacking the U.S. government simply for indicting him since his shipping cannabis seeds to the U.S. seems to be common knowledge. The approach needs to be different. It needs to point out the harshness of the American system, its fanatical reliance upon incomprehensibly long imprisonment. One needs to sympathetic to the public's concern about drug abuse, but point out that the American approach is cannibalizing those with drug problems, not helping them. There is an anti-drug madness at large in America that, in this case, could easily result in life imprisonment. It is important to learn the details of the allegations in the U.S. indictment, and the specific offenses charged, to show what a likely sentence would be produced by following the sentencing guidelines.

What is important to remember is that one element of extradition is that the executive (in Canada, technically, the Minister of Justice, but in reality the Government, including the Prime Minister) makes a political decision. Would the demanded extradition lead to a likely sentence that would shock the conscience of the populace in the asylum nation? If so, the executive can decline to extradite.

However, does refusing to honor the extradition request of the demanding nation create a significant domestic political or economic problem, or diplomatic problem with the demanding nation? If so -- even if the likely sentence in the demanding nation is shocking -- the government will go ahead and honor the extradition request.

Or does granting the extradition request create such a domestic political problem for the government that it rejects the extradition request? Marc Emery's supporters must create a sufficiently unacceptable domestic political problem for the government if it were to extradite Emery in order to overwhelm the pressure from all other sources. However, the Martin government is very weak. How will its domestic political opponents exploit this case to use against it? How will the government (Liberal) party members react to this issue? A lot of political work needs to be done in Canada.

Canada and the U.S. have a number of contentious issues between them. There are significant economic conflicts over cattle, timber and fishing. Powerful economic interests in the two countries are in conflict.

Would the U.S. use Canadian resistance to the extradition demand for Marc Emery, as part of its political attack on Canada for being indifferent to the export of the "dangerous B.C. Bud," and soft on marijuana (and by extension all drugs)? Almost certainly.

But would the U.S. use this case as a pretext to actually retaliate in areas very important to Canada involving cattle, timber and fishing? That is much less likely.

Would the Canadian government fear or buckle to such economic threats? Perhaps. Would Canadian businesses involved in cattle, timber and fishing tell the Canadian government that it should not sacrifice any precious Canadian jobs to a political fight with the U.S. over a "dope dealer?" If those industries are mobilized to do so, quite probably.

Ultimately Marc's fate lies in Canadian politics. His Canadian supporters need to convince the Canadian government that his successful prosecution in the U.S. would result in sentences that would shock the conscience of civilized people, AND that the Canadian people and Canadian business support a refusal to extradite Marc to the U.S., notwithstanding the threats the U.S. may make.

Americans should pressure all U.S. businesses (and labor unions) that have an interest in smooth trade relations with Canada to lobby U.S. Senators, Members of Congress, and executive branch officials NOT to retaliate against Canada if Canada declines to extradite the so-called "Prince of Pot." Knowledge of any such lobbying activities in the U.S. will strengthen the resolve of the Canadian government to call any U.S. bluff threatening retaliation.

It is worth reminding the Canadians that economic threats over this issue are both hollow and hypocritical. Throughout the time that Mexico was the major smuggling route to the U.S. of heroin, cocaine, methamphetamine, AND marijuana, the U.S. government and the Republican Party fought like heck to ram NAFTA -- the North American Free Trade Agreement -- through the Congress IN ORDER TO MAKE IT EASIER TO SHIP GOODS FROM MEXICO INTO THE U.S.

Given the rampant, systemic corruption of Mexico's law enforcement establishment while NAFTA was being pushed through Congress, U.S. threats to sanction Canada for not extraditing Marc Emery, or Renee Boje for that matter, are, on the U.S. hypocrisy meter, way over the red line, right up to the pin.

Business leaders on both sides of the border should be reminded that disrupting important economic activity because of a frustrated marijuana prosecution would be an act of stupidity unrivaled by that in any Cheech and Chong movie.

Given the billions of dollars in trade between the U.S. and Canada, this threat, while big, is ultimately empty.

Canadian supporters of Marc Emery have a big political struggle ahead to block this extradition. They need to appeal to Canadian pride and Canadian honor. They need to nullify any perception of an economic risk to Canada.

They need to hold up America's pot laws and sentences as preposterous and extreme. But I don't think the Canadian people are going to be shocked that a U.S. grand jury indicted the "Prince of Pot" for his role in shipping Cannabis seeds to the U.S. or that Canada complied with a lawful extradition request at the initial stage.

But now, past the initial stage, the Canadian government needs to engage in the fact-finding, and the moral calculus, to decide whether to send one of its sons into the American gulag.

The political message necessary to free Marc Emery needs to be very carefully crafted. If it is reckless, shrill, illogical, or factually flawed, it will fail, and Marc Emery will end up rotting away in an American prison. Emery's supporters need to be very careful, even as they work very hard.

Headlined, The Downing Street Drug Memo, his story on this report was the second story reported, which was an appropriate level of prominence. But my first reaction was that it was an Onion-type spoof of the Downing Street Memo regarding the lead up to the war in Iraq written in terms of the drug war, and I skipped looking at it altogether, to see if I was quoted in other stories :o)

Posted on the Guardian web site, this 105-page report is extremely interesting. It is a very frank evaluation of the failure of drug enforcement in Britain.

The report finds that crime committed by drug users is the biggest dimension of the drug problem.It argues that only 30,000 of Britain’s 300,000 or so heroin and crack users commit the overwhelming bulk of the crime.Yet these drug users come into contact with the criminal justice or treatment agencies and aren’t adequately treated.

More striking is the overview of the economics of producing, smuggling and retailing drugs for the British market.The report makes very clear that prohibition has been counter productive – enforcement drives up prices encouraging more folks to enter the business, and creating more crime. Enforcement and interdiction result in quality fluctuations that lead to more overdoses.And the report is frank that current enforcement strategies are unlikely to make more than minor improvements.

The report is laid out in an extraordinarily visual manner.Many of the pages could be directly plopped into a very compelling PowerPoint presentation about the failure of the war on drugs in Britain and the implications for the U.S.

If you are interested in understanding the war on drugs and its limitations, your time spent looking at the report will be time very well spent.

American readers will also be struck by the truthfulness, reasonableness, and compassion that is obvious in the report.

With the Supreme Court ruling 6 to 3 against Angel Raich and Diane Monson in their suit to prevent the Justice Department from interfering with their use of marijuana under California law, some people have questioned the wisdom of their legal and political strategy.

If you are going to lose in the Supreme Court, this is a pretty good way to go. I think the wisdom of this approach has been affirmed by the decision.

But first, let us not forget the value of having won the case in the Ninth Circuit, Raich v. Ashcroft, 352 F. 3d 1222 (9th Cir. 2003). Imagine, for a moment, that this case had never been brought. Think of Bryan Epis still behind bars, serving a mandatory minimum sentence of 10 years after a trial in which he could not present a defense of his own injuries, pain or California law. Think of the 10-year sentence that Ed Rosenthal might have received. Think of the Wo/Men’s Alliance for Medical Marijuana (http://www.wamm.org) hospice for the dying in Santa Cruz still out of business.

Medical marijuana patients, and the doctors who care for them, have lost nothing they didn’t have two years ago – they have gained immeasurable political support and public education.

Think about the impact of the Ninth Circuit win on the politics in Vermont, Montana, Rhode Island, New York, or on the votes on the Hinchey-Rohrabacher Amendment in the U.S. House of Representatives to bar DEA from raiding patients. Without this case and the victory in the Ninth Circuit, where would be the patients, doctors, and the movement to protect them?

This case is a remarkable decision. As I finished reading the majority opinion, which reversed the Ninth Circuit’s ruling, I had the sense that the five justices who joined the majority opinion were in a mood something like that of the jurors in Ed Rosenthal’s trial: this is the law we’ve got to work with but we’re not happy with it. I could almost imagine Justice Stevens, after retiring from the Court, joining the Marijuana Policy Project or Americans for Safe Access. It must be noted that the patients in this case had the support, in the dissenting opinions, of two of the most conservative justices – Chief Justice Rehnquist and Justice Thomas -- and Justice O’Connor, who is considered by many analysts as the most important justice sitting because she has been at the center of the court in so many of the controversial cases in recent years.

It is important to also note that the case is not over – it goes back to the Ninth Circuit and the U.S. District Court in San Francisco, where other legal claims made by Raich and Monson will be considered.

Turning to the case, the five justice majority opinion by Justice Stevens (Justice Scalia wrote a separate concurring opinion) – the opinion that said Angel Raich and Diane Monson lose -- concluded with FOUR sympathetic expressions for them (Slip Opinion, pp. 30-31). In effect, the Supreme Court said, you lost, but here are four ways you could get what you want (and deserve).

First, the Supreme Court said Angel and Diane may try to get relief by continuing their suit under “substantive due process,” a legal theory that was not addressed by the Court of Appeals or the Supreme Court.

Second, the Supreme Court majority said they could “seek to avail themselves of the medical necessity defense.” This is the defense that the Supreme Court said was not available to Jeffrey Jones and the Oakland Cannabis Buyer’s Cooperative in its 2001 opinion, in an 8-0 decision!

Who could have imagined, in 2001, that in 2005 a majority of the Supreme Court would be casually urging patients to “avail themselves of the medical necessity defense,” with the implication that is a settled and established legal doctrine.

Third, the Supreme Court noted that the patients can seek reclassification of marijuana from Schedule I to another schedule. (Unfortunately this suggestion is not accompanied by a footnote to the excellent amicus brief submitted by Rick Doblin and MAPS, pointing out the limitations of that approach.) Although the CSA bases the rescheduling decision on scientific and ostensibly objective criteria, in reality it is a political decision that remains remote. No recent President has demonstrated an inkling of the resolve to direct the DEA Administrator look at the facts and end the political conflict between the states and the federal government.

And fourth, the court majority said, “perhaps even more important... is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.” (Emphasis added). The court didn’t have to say this. When you consider the many ways the court could have said that Congress can resolve this conflict, this phrasing stands out.

It is clear that the justices believe that voices allied with the respondents should be heard (and heeded) in the Congress. The justices are practically lining up with us to support the Hinchey amendment to the Science, State, Justice and Commerce Appropriation Bill (not yet given a number in the 109th Congress) to be debated on June 14, 2005 (CONTACT YOUR MEMBER OF CONGRESS) and the Frank bill, the States Rights to Medical Marijuana Act (H.R.2087).

The 6 to 3 outcome of this case is dramatically different from the outcome just four years ago when the Oakland Cannabis Buyer’s Cooperative case, 532 U.S. 483 (2001) was lost 8 to 0 (with Justice Breyer recusing himself because of his brother’s role at the trial level).

The provision of the Constitution that is at issue is Article I, Section 8, clause 3, “The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes...”

In the 1995 and 2000 cases – which were closely and bitterly divided -- the Supreme Court held recent acts of Congress were unconstitutional because they exceeded Congress’ power under the Commerce Clause. In Morrison, they held that violence against women was not a sufficiently economic problem in interstate commerce that Congress could pass a law giving a woman the right to sue another person for their injuries. In Lopez, the simple possession of a handgun at a school in Texas was not sufficiently connected to interstate commerce to permit Congress to make such possession a federal felony.

Strategically, the patients recognized that if the Supreme Court wanted to follow those two precedents in further limiting the reach of Congress’ power, the facts of Gonzales v. Raich presented a very attractive case to the Court – an invitation that three justices accepted.

Wickard v. Filburn was a 1942 case in which Filburn, an Ohio commercial farmer, disregarded a New Deal-inspired, federally imposed limit on the amount of wheat he could plant and harvest. He planted an 11.9 acres in excess of his allotment, and harvested 239 bushels of wheat (more than six tons) in excess of what he was authorized, which he used to feed livestock that he sold, saving some for seed, and using some to mill into flour to bake bread for his own table. There the court unanimously ruled that the wheat he grew to retain for his own use could be covered by the federal law because it “affected” interstate commerce. (The record showed that the extensive swings in the price of wheat that Congress was trying to control in this law were strongly influenced by the fluctuating amounts of wheat that farmers kept for their own use).

Since 1942, this broad reading of the Commerce Clause power has been used to support Federal civil rights laws prohibiting employment discrimination, discrimination in interstate travel and accommodations, environmental laws, work place safety laws, and a host of other regulatory fields.

The issue in this case

This case was never simply about medical marijuana or the Controlled Substances Act. This case was a direct challenge to the reach and power of the Federal government.

Many constitutional theorists have been concerned that the two centuries old system of checks and balances had left the Federal government unchecked, and the system unbalanced. At the Federal level, we see the checks and balances play out fairly openly in the conflicts between the Executive, the Congress and the Judicial branch. Congress investigates, demands documents and oversight, block appointments, or withholds funds from the Executive. The Executive nominates, pressures, has commanding access to the news media and information, makes appointments, or vetoes legislation. The Courts can strike down acts of the Congress or the Executive, or enjoin actions of the Executive.

But at the national level, in the conflict between the power of the States and the power of the Federal government, the battle ground is harder to find, and the actions are often less decisive. States have no mechanism for challenging Federal power except in the courts. Therefore some constitutional theorists argue that the Supreme Court has the power and unique duty to preserve the balance between State and Federal power. That was one of the issues presented by Gonzales v. Raich, and it was addressed by Justice O’Connor in her dissent in her reference to the states as “laboratories” for social and legal experimentation.

Observations about the opinions

It is clear that the justices knew that if they ruled in favor of Angel Raich and Diane Monson, that the Supreme Court would be creating a constitutional bar to federal prosecution of growing cannabis for one’s own non-commercial purposes – medical and otherwise. This constitutional limitation on federal power, if established, logically could have been extended to people who grew mushrooms or peyote or synthesized LSD or methamphetamine in their own home if they could establish that the source of their materials were wholly in-state and non-commercial. In their willingness to uphold their vision of a constitution with limited federal government powers, the three dissenting justices – O’Connor, Chief Justice Rehnquist, and Thomas -- were willing to significantly shrink federal marijuana and other drug prohibition.

Regarding the question of marijuana’s medical efficacy, the majority expressed a great deal of sympathy to Angel and Diane’s argument, and the scientific facts. In contrast to the government’s brief filed with the Court that bristled with sneering condescension about their ailments, the court describes them sympathetically (p.3). Consider the sympathetic tone in the court’s account of the raid at Diane’s home at which the local authorities “concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.”

Don’t look to any of the opinions to trumpet the government’s litany of the dangers of marijuana. Look at how the Supreme Court describes the lead-up to the Marihuana Tax Act, “Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana’s addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act.” (p. 7). There is no echo in the opinion of the hysteria in the 1930s about death, insanity, out of control and poisoned youth, or attendant “Reefer Madness.”

In discussing that the difference between medical marijuana growers and “drug trafficking” that the 9th Circuit found to be “different class of activities,” the Supreme Court said it “might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress’ contrary policy judgment...was constitutionally deficient.” (p. 23). That analysis resonates with sympathy for the patients’ claims. Justice Thomas strongly embraced the lower court’s distinction, in his dissent.

Later, in footnote 37, the court says: “We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I...But the possibility that the drug may be reclassified in the future has not relevance to the question whether Congress now has the power to regulate its production and distribution.” (p. 24).

The majority found that the non-commercial, intrastate medical marijuana cultivation would affect the interstate market in marijuana, and that controlling that was a reasonable and indispensable part of the total regulatory scheme.

Justice Scalia found that even though the activity in this case was intrastate and does not

substantially affect interstate commerce, it remains “necessary” to regulate them as part of a broader regulation of interstate commerce pursuant to the last clause of Article I, Section 8 authorizing, “The Congress...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...” Scalia found that Congress “has undertaken to extinguish the interstate market in ...marijuana. The Commerce Clause unquestionably permits this...That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation.

Conclusion

As a result of this case, we are back to the status quo of a couple of years ago. Patients and doctors have lost nothing. DEA’s preposterous raids, and the unfair trials in which prosecutors and judges manipulated rules to evidence to prevent effective defenses and to mislead juries, brought obloquy to our system of justice. Should the Justice Department resume their unwise and spiteful course, they will reignite a political backlash.

The magnitude of the suffering of Raich and Monson -- and the urgency of their continuing therapy -- demonstrates their extraordinary courage and determination in abandoning the safety of privacy and anonymity for this contest. Thus they have developed an enormous well of sympathy and support for this effort. It is hard to imagine more sympathetic advocates than Angel Raich and Diane Monson. This case has generated an unimaginable amount of positive, sympathetic support and education about this issue.

Now, harkening the concluding words of the Court’s majority, we are set to throw this issue back to the Congress.

And Angel and Diane are invited by the Supreme Court to return to court with a different constitutional theory to protect themselves.

That is a pretty good outcome, especially considering the odds against winning to start with.